Ram Dhayan Singh vs The State of U.P. and Others

Anjani Kumar, J.—These bunch of Writ Petitions, out of which the present writ petition i.e. Civil Misc. Writ Petition No. 33921 of 2003 (Ram Dhyan Singh v. The State of U.P. and Ors.) is the leading case, have been filed under Article 226 of the Constitution of India by the Petitioners, who can broadly be divided in the following categories:

(i) Such Petitioners, who entered into an agreement with the concern Authority as per relevant Government Orders, whereby they were appointed to deal with; the, food grains meant for distribution under Public Distribution System as ah agent on behalf of the State and their dealership (right to deal exclusively in food grains meant for Public Distribution System), have been terminated, such persons who have approached to the Appellate Authority in terms of the relevant Government Orders against the aforesaid termination and the Appellate Authority has dismissed their appeals.

(ii) Such Petitioners, who were granted dealership by virtue of an agreement to exclusively deal with the food grains meant for Public Distribution System in the rural area and on being complaints filed against such dealers, the Authority acting upon the complaints have terminated , their agreement of dealership; these dealers approached the Appellate Authority and the Appellate Authority; (a), has allowed their appeals without hearing the complaints and restored their respective dealership; or (b) has dismissed their appeals; these complainants have preferred writ petitions on the ground that they were not heard by the Appellate Authority before restoring the dealership of the concern dealers; and dears who have approached the Appellate Authority against the cancellation of their dealership and their appeal has been dismissed by the Authority.

The State Government has issued Government Order dated 3rd July'' 1990 which provides the methodology of appointing dealers and includes the provision of appeal against suspension/cancellation/refusal to renew the dealership to the Commissioner of the division etc.

The another Government Order dated 10th August, 1999 deals with the subject. The next Government Order dated 13th January, 2000, which deals with the subject and the latest Government Order dated 22nd October, 2003, wherein relying upon the Division Bench decision of this Court, a Government Order was issued on 30 July, 2003 wherein it was stated that in view of the decision of the Division Bench of this Court in Civil Misc. Writ Petition N. 749 of 2003 (Zila Panchayat, Ghaziabad) v. State of U.P. and Ors.)decided on 2nd May, 2003, the State Government ahs issued a direction that the Gram Panchayat has been conferred with the powers of distribution etc. of the food grains meant for Public Distribution etc. of the food grains meant for Public Distribution system. The Division bench decision of this Court is subject matter of SLP No. 17369 of 2003 before the apex Court and the apex Court vide its order dated 26th September, 2003 stayed the operation of the judgment and order of this Court, referred to above, and consequently the Government Order was issued reviving the Government Orders dated 3rd July, 1990 and 13th January, 2000.

At the outset, Shri Suresh Singh, learned Standing Counsel appearing on behalf of the State of U.P. defending the interest of the State relying upon, the aforesaid Government Orders raised a preliminary objection regarding the maintainability of these writ petitions before this Court, in as much as it is submitted by the learhed Standing Counsel that in view of the decision of Division Bench of this Court in the case of Gopal Das Sahu and Anr. v. State of U.P. and Ors. reported in 1991 (17) A.L.R 406 : (1991 ALJ 498) (Civil Misc. Writ Petition Nos. 20086 of 1990, 24834 of 1990 and 32131 of 1990), decided on April 15, 1991) dealing'' with the similar controversy arising out of U.P. Scheduled Commodities (Regulation of Distribution Order) 1989 (herein-in-after referred to as "Distribution Order of 1989"), the Division bench of this Court has said that the fair price shops dealers have no legal right to obtain supply of schedule commodities, neither the Government is obliged to supply these commodities to agents Paragraphs 16, 17, 18, 19 and 20 deal with the subject matter, which have been referred to and relied upon by learned Standing Counsel, are quoted as hereunder:

We have already noted the relevant provisions of the distribution Control Order of 1990. The Control Order of 1990 does not contain any provision for cancellation or suspension of agreement and further the order does not provide the manner in which the appointment of agent is to be made from all these provision it is manifest that the appointments of the petitions as agents to run fair price shops are contractual and their right to run the fair price shop emanates from the agreements. The Supreme Court as well as this Court on various occasions considered the aspect of the matter and held that the relationship of an agent with the State Government is contractual in the case of S. Chandra Sekharan and Others Vs. Govt. of Tamil Nadu and Others, , the Supreme Court had occasion to consider the validity of the termination of agreement in respect of sale of levy sugar do not have any fundamental right or legal right to deal with that commodity and as such they are bound by the terms of the contract and their termination being in pursuance of the agreement cannot be assailed by means of a writ petition under Article 226 of the Constitution. Similar view was expressed by a Full Bench of this Court in the cases of Shitla Prasad Vs. M. Saidullah and Others, and Raj Kumar Sheo Kumar and Anr. v. A.D.M. (Civil Supplies and Anr. reported in 1981 (1) A.L.J. 261 and Ram Awadh v. State of U.P. reported in 1990-11, Essential Commodities Cases, Page 490. IN all these cases it was held that neither Article 14 of the Constitution nor principles of natural Justice is attracted when agreement to sell Government''s food grain through fair price shop is terminated.

In the present case the Petitioners have no fundamental right or legal right to deal with the scheduled commodities distribution through the Government run fair price shops. It is open to the Petitioners to carry on business of foodgrain other than the foodgrains other than the foodgrains supplied through these fair price shops. Infact their right to run fair price shops emanates from the agreement. The agreement permits the Collector to terminate or suspend the agreement permits the Collector to terminate or suspend the agreement and this termination of suspension order will not give a cause of action to the Petitioners to challenge the said order of termination or suspension of agreement by means of petition under Article 226 of the Constitution.

Before we part with these cases we propose to deal with the arguments advanced on behalf of each of the Petitioners in connected with prayer for supply of quota of scheduled commodities by the Respondents in their favour. The argument is that the Petitioners having been appointed as authorized retail distributors for running the Government fair price shops or issued a license for retail sale of kerosene oil, it is not open to the Respondents to abruptly stop supply of scheduled commodities including kerosene oil to them arbitrary and without notice or intimation to them.

On the argument of the learned Counsel for the Petitioners the question which arises for consideration is as to whether these Petitioners have a right to receive the quota of scheduled commodities including kerosene oil and in the event of non-supply of scheduled commodities in their favour can this Court compel the Respondents to release the quota of the said scheduled commotions in favour of the Petitioners for being distributors through fair price shops.

We have gone through the Control Order of 1990 and the Government Order dated 3.7.90 issued in pursuance thereof and we find that none of the Petitioners thereof and we find that none of the Petitioners has any legal right to obtain Supply of scheduled commodities including kerosene oil for distribution through the fair price shops and furthers there is no obligation on the part of the Government to supply these commodities in favour of the agents who have been appointed to run the fair price shops. However, there are several clauses pertaining to method and manner of supply of scheduled commodities to the agents and the Government. The relevant clauses are clauses 3, 4 and 5 of the agreement Clause 3 of the agreement stipulates that an agent shall receive of lift quota of scheduled commodities in accordance with the directions issued by the authorities empowered in this behalf. Thus the supply of quota of scheduled commodities to the agents is subject to the orders issued by the authorities concerned and the agents cannot as a matter of right, claims release of scheduled commodities in their favour. We are, therefore, of opinion the Petitioners have neither any fundamental right nor legal right as to compel the Government to supply the scheduled commodities including kerosene oil in their favour. Moreover in the earlier part of the judgment we have already held that the relationship of agents who have been appointed for distribution of the scheduled commodities through the fair price shops with that of the State Government is contractual and infact their appointments as agents and determination of the agreement are under the agreements which is non-statutory in character, and, therefore, the supply of release of quota of scheduled commodities in favour of the agents has to be governed by the incidence of the contract or agreement and this Court in exercise of powers under Article 226 of the Constitution cannot compel the Government to supply the quota of scheduled commodities in favour of the Petitioners.

For the purposes of arriving its conclusion, the Division Bench has relied upon as observed in para 22 of Gopal Das Sahu''s Case, which runs as under:

Moreover, controversy in the present case is squarely covered by the decisions of the Supreme Court and Full Bench of this Court in the case of S. Chandra Sekharan v. Government of Tamil Nadu (Supra) and Shital Prasad v. Mohd. Saibullan (Supra), respectively. The decision of the Supreme Court in the case of S. Chandra Shekharan v. Government of Tamil Nadu is a constitution bench decision of five Hon''ble Judges whereas the decision of the Supreme Court in Mahabir Auto Stores (supra) is a decision by two Hon''ble Judges of the Supreme Court. In our opinion the decision in the case of S. Chandra Shekharan v. Government of Tamil Nadu (supra), is binding on the High Court. We are, therefore, of the opinion that the Petitioner cannot derive any assistance from the case of Mahabir Auto Stores (Supra) as to compel the Respondents to supply scheduled commodities for distribution through Government run fair price Shops.

According to learned Standing Counsel appearing. behalf of the State , the controversy stands concluded by a Full Bench judgment of this Court in the case of U.P, State Gala Vikreta Parishad, Allahabad v. State of U.P and Ors. reported in 1992 (2) E.F.R 655, wherein the Full Bench considered the similar controversy and has held that the agreement between the fair price agents and District Magistrate / State for sale of the scheduled commodities through fair price shops and termination or suspension of such dealership in that event this Court will not interfere in exercise of power under Article 226 of the Constitution in paragraph 15 of the judgment, referred to above, the Full Bench has considered the decision of Division Bench of Gopal Das Sahu (Supra) and held that it lay down correct law and has given its conclusion in paragraph 21, which is quoted below:

Even through the Petitioners and other authorized agents cannot challenge the breach of their contract on the ground of violation of constitutional provisions before this Court under Article 226 of the Constitution but they are not remediless. Government letter itself Provides for appeal against some of the orders, which may be passed by the authorities. That part, the authorized agents like the Petitioners have remedy of civil suit before the appropriate Civil Court, which they can institute before filling of the appeal as Well as after the appeal is decided.

Learned Counsel has further relied upon a Division Bench decision of Madhya Pradesh High Court, reported in 1992 (2) E.F.R. 669 Bank of Baroda v. Collector, Indore and Ors. in support of his contention.

Learned Counsel appearing on behalf of the Petitioners, on the other hand submitted that after the amendment of the Constitution by 73rd Constitutional amendment, the so called contract or appointment of the dealership cannot be said to non-statutory, particularly, in view of the observations made by the apex Court in the case reported in M/s. Hyderabad Vanaspathi Limited Vs. Andhra Pradesh State Electricity Board and Others, and the case reported in M/s. Style (Dress Land) Vs. Union Territory Chandigarh and Another, . It is further--submitted on behalf of Petitioner''s counsel that the appointments are under respective Control Orders, which are framed under the provisions of Essential Commodities Act, as held by the apex Court in the case reported in J.T. 2001 (1) SC 426.

Learned Standing Counsel in support of his contention has further relied upon a decision of the apex Court reported in Radhakrishna Agarwal and Others Vs. State of Bihar and Others, , on the question that the Petitioners cannot invoke the principles of natural Justice and even if no opportunity was given the order impugned cannot be said to be void. Learned Standing Counsel has relied upon paragraph Nos. 10 and 11, which are reproduced as under:

It is thus clear that the Erusian Equipment Chemicals Ltd.''s case AIR 1975 SC 226 (supra) invoked discrimination at the very threshold of at the time of entry into the field of consideration of persons with whom the government could contract at all. At this stage, no doubt, the State Act purely in its executive capacity and is bound by the obligations which dealings of the State with the individual citizens import into every transaction entered into in exercise of its constitutional powers. But, after the State or its agents have entered into the field of Ordinary contract, the relations are no longer governed by the constitutional provisions but by the legally valid contract, which determines rights and obligations of the parties inter se. No question arises of violation of Article 14 of any other constitutional provisions when the State or its agents, purporting to act within this filed, perform any act. In this sphere, they can only claim right conferred upon them by contract and are bound by the terms of the contract only unless some statute steps in an confers some special statutory power or obligation on the State in the contractual field which is apart from contract.

In the cases before us the contracts do not contain any statutory terms or obligations and no statutory power or obligation, which could attract the application of Article 14 of the Constitutional is involved here. Even in cases where the question is of choice or consideration of competing claims before an entry into the field of contract facts have to be investigated and found before the question of a violation of Article 14 counsel arise. If these facts are disputed and require assessment of evidence the correctness of which can only be tested satisfactorily by taking detained evidence, involving examination and cross-examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution. Such proceedings are summary proceedings reserved for extraordinary cases where the exceptional and what are described as, perhaps not quit accurately, "prerogative" powers of the Court are invoked. We are certain that the cases before us are not such in which powers under Article 226 of the Constitution could be invoked.

On the question of observation of principle of natural Justice, learned Standing Counsel has relied upon the decisions reported in Belde Venkatesham Vs. Chokkarapu Lakshmi Narasiah, ; and Lekhraj Satramdas, Lalvani Vs. Deputy Custodian-cum-managing Officer and Others, . Learned Standing Counsel has further relied, upon the decisions in support of his contention, which are reported in The Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. Vs. Sipahi Singh and Others, . All Party Hill Leaders'' Conference, Shillong Vs. Captain W.A. Sangma and Others, ; Divisional Forest Officer Vs. Bishwanath Tea Co. Ltd., and Bareilly Development Authority and Another Vs. Ajay Pal Singh and Others, .

These very arguments were advanced, which have been repelled to by learned single Judge of this Court in the case reported in 2001 ACJ 1960 Tareef Singh and Ors. v. Commissioner Agra Division and Ors. It has been stated at Bar that the judgment of learned single Judge has become final, as no Special Appeal or SLP was filed against the order or learned single Judge in paragraph 12 learned single Judge has held, which reads as under:

The crucial question involved in these writ petitions for consideration and determination by this Court is whether the appointment of the Petitioners as agents forerunning the fair price shops for distribution of the essential commodities to the assigned ration card holders in pursuance of the agreements executed by them in favour of the State or U.P. through the Collector/Sub Divisional Magistrate is the outcome of a statutory or a non statutory contract. The fate of these writ petitions obviously would turn out on the answer of the above question inasmuch as, the practice would swim or sink with the finding on the point.

After coaxing the aforesaid question, learned single judge has answered the said question in paragraph 14, which runs as under:

The learned Standing Counsel pointed our that earlier a firm view had been taken by this Court that the agency to distribute the essential commodities is the product of the non statutory contract and, therefore, a writ petition under Article 226 of the Constitution is not maintainable. Obviously the reference was to the decision of a Division Bench of this Court in Gopal Das Sahu v. State of U.P. 1991 (17) A.L.R., 406, which dealt with the cancellation o contract executed by an agent with the Collector for the sale of scheduled commodity under the Control Order. It was held that neither Article 14 of the Constitution of India, nor principles of natural Justice are attracted when agreement to sell governing food grains through fair price shops is terminated. It was further laid down that the relationship of the agents with Government is contractual and nonstatutory in nature and, therefore, a writ under Article 226 of the Constitution of India is not maintainable to compel the Government to supply the quota of scheduled commodities to the Petitioner therein. Subsequently, a full Bench of this Court in U.P. State Sasta Galla and Vikreta Parishad, Allahabad v. State of U.P. 1992 (2) EFR 655; and Shri. Mohan Lal V. State of U.P. and Ors. 1993 (21) A.L.R. 121 : 1992 All. C.J. 1139 , approving the decision in Gopal Das Sahu''s case (Supra) held that the order of termination or suspension of an agreement entered into between the Petitioner and the District Magistrate for sale of scheduled commodities through fair price shop pursuant the U.P. Scheduled commodities Distribution Order 1990 cannot be Challenged in a writ petition and the proper course, for the agent or say the dealer, was to vindicate, his grievance by filing a civil suit. It was canvassed before the Full Bench the in view of the decision of the Apex Court in Kumari Shrilekha Vidyarthi and Others Vs. State of U.P. and Others, and host of other decision, the decision in Gopal Das Sahu''s case (supra) required reconsideration. The Full Bench retreated the view taken Gopal Das Sahu''s case > (supra) as laying down the correct law by observing that the apex Court has consistently taken the view that where the contract which has been entered into between the State and the person aggrieved is non-statutory, the right of the parties thereto are governed by the terms of the contract and not by constitutional provisions and no writ or order can be issued under Article 226 of the Constitution of India by the High Court for enforcing such a contract.

Learned Counsel appearing on behalf of the Petitioners in those cases which have been dealt with the learned single Judge of this Court, as stated above, also argued that the decision of the Full Bench in U.P. Sasta Galla Vikreta Parishad E.F.R. 1992 (2) 655 and shiv Mohan Lal (1993 (21) A.L.R. 121 ) was primarily based on the observations made by the apex Court in the case of Bareilly Development Authority and Another Vs. Ajay Pal Singh and Others, , which was subsequently not approved by the apex Court it its subsequent decision in the case of Indore Development Authority Vs. Sadhana Agarwal (Smt) and Others, . Learned single Judge has sum up his conclusion in the para 17 of the said Judgment, which read as under:

In Indore Development Authority (supra) the apex Court has not deviated from its earlier view taken in Bareilly Development Authority''s case (supra) but justified the interference in the background of special facts and circumstances by holding that the Development Authority owned his duty to explain and satisfy the Court the reason for such high escalation. A cautions approach was adopted by the Court by making the observation that:

We may add that this does not mean that the High Court in such disputes while exercising the writ jurisdiction has to examine every detail of the construction with reference to the cost incurred, High Court has to be satisfied on the materials on record that the Authority has not acted in an arbitrary and erratic manner.

The view taken in Bareilly Development Authority''s case (supra) that the nature of the contract was nonstatutory has not been disturbed in the decision in Indore Development Authority (Supra). The law laid down in Bareilly Development Authority''s case, that the Full Bench decision in U.P. Sasta Galla Vikreta Parishad''s case (supra) and Shiv Mohan Lal''s case (supra) are based on a law, which has been subsequently held to be not good."

the question of effect of the changes brought in by the 73rd constitutional amendment has also been dealt with the learned single Judge in paragraph 18 of the said Judgment, which runs as under:

A reference was made to another decision of the apex Court in M/s. Hyderabad Vanaspathi Limited Vs. Andhra Pradesh State Electricity Board and Others, for determining whether a contract is statutory nor non-statutory and on the strength of this decision, Sri Ramendra Asthana Strenuously argued that the agreement executed by the Petitioners in favour of the District Magistrate with a view to obtain license to run fair price shop for distribution of essential commodities would fall within the ambit of statutory contract. He further pointed out that a Division Bench of this Court in a recent decision in Pappu v. State of U.P. and Ors. (supra) has held that the contracts for running the fair price shops have statutory flavour and a writ petition for the enforcement of the right in the event of their breach is maintainable under Article 226 of the Constitution of India. The law laid down by the Full Bench in U.P. Sasta Galla Vikreta Parishad (supra) and Shiv Mohan Lal (supra) was held to have no application in view of the fact that it came into being prior to the insertion of Article 243G of the Constitution by means of Seventy Third Constitutional Amendment and substitution of Section 15 of U.P. Panchayat Raj Act by Act No. IX of 1994. It was pointed, out that before the Full Bench Clause 4 of the U.P. Scheduled Commodities Distribution Order, 1990 was under consideration. The Full Bench visualized that fair price shops would be run by such persons, in such a manner, a manner, as the Collector, subject to the direction of the State Government may decide and the person authorized to run a fair price shops would be treated as the agent of the State Government. By a letter dated 3.7.1990., the Government issued instructions to all the District Magistrate laying down therein the procedure for selection of agents in rural areas and by Clause 6 thereof, the District Magistrate had been directed to get the contracts executed in the prescribed program by the agents running the fair price shops. Clause 11 of the said letter made provision for appeal against the order of appointment, suspension, cancellation, or non-renewal of contracts. Under the new system which was introduced as a result of the amendment in the constitution and incorporation of Section 15 in the U.P. Panchayat Raj act and the issue of Government order dated 10.8.1999, it was pointed out that the allotment of fair price shop is done pursuant to a resolution passed in that regard by the concerned Gram Sabha Certain qualifications have been prescribed in the Government Order. The status of the allottee it was held is not that of an agent of the State Government. The matter of allotment and the procedure for cancellation as prescribed in the Government Order have the force of law. Once an allotment is made in favour of a person he acquires a right to run the shop in the manner prescribed in the Government Order. The allottee runs the risk of cancellation only in the event of committing irregularities in the distribution of scheduled commodities. A Gaon Sabha is a legal authority within the meaning of Article 12 of the Constitution of India and its decision effecting the rights of citizen cannot go beyond the purview of Judicial review under Article 226 of the Constitution of India. To be more precise, specific, and for the sake of clarity, it would be proper to quote paragraph 5 of the decision in Pappu''s. case (supra) which reads as follows: (All. C.J. at page 206).

It would thus appear that the selection and cancellation of fair price shops are not longer a contractual matter. It is now governed by the statutory provision, namely, Section 15 of the U.P. Panchayat Raj Act, read with Government order dated 10.8,1999, which has the force of law being a provision having statutory flavour.

In the instant case, the allotment of fair price shops in favour of the Petitioner-Appellant herein was cancelled by the concerned Gram Panchyant but without following the procedure prescribed in para 10 of the Government Order referred to above, which provides for an ''enquiry'' by the Administrative Committee of the Gram Panchyat into the complaints regarding irregularities in the distribution of scheduled commodities by the allottee of the fair price shop. The enquiry visualized by Clause 10 of the Government Order must, in the our opinion, be held in a fair manner in tune with the principles of natural Justice. The fact that the decision'' regarding cancellation is required to betaken by the Gram Sabha in its open meeting would suggest that there should be transparency in the decision making process. A decision regarding cancellation of fair price shop taken by the Gaon Sabha sans any enquiry in tune with the principles of natural Justice cannot be sustained being contrary to the procedure laid down in the Government Order aforesaid which ensures procedural fairness in the matter of cancellation of fair price shops.

Learned single Judge has further dealt with the arguments advanced on behalf of learned Counsel for the Petitioners in paragraphs 19 and 20 of the aforesaid Judgment, which read thus.

On the strength of the decision in Pappu''s cas (supra) Sri Ramendra Asthana pointed out that the earlier view taken in Gopal Das Sahu''s case (supra) as well as U.P. Sastha Galla Vikreta Parishad (supra) and Shiv Mohan Lal (supra) does not hold good and writ petition is now maintainable under Article 226 to enforce the breach of the rights and obligation arising out under the agreement executed by the Petitioners for obtaining the essential commodities for distribution to the ration card holders respectively allocated to them. It was further urged that there can be no enquiry without observation of the principles of natural Justice as has been laid down by the Apex Court in M/s. Style (Dress Land) Vs. Union Territory Chandigarh and Another, ; Vasant D. Bhavsar Vs. Bar Council of India and Others, and Sahi Ram Vs. Avtar Singh and Others, .

In view of the Full Bench decision in U.P. Sasta Galla Vikreta Parishad (supra) as well as Division Bench decision in Pappu, a reference to a larger Bench was made by another Division Bench in Chhokhe Singh v. Sub Divisional Magistrate Civil Misc. Writ No. 51595 of 1999 posing as many as ten specific question to be answered by the larger Bench. The larger Bench did not answer the question on merits by observing that since the order dated 10.8.1999 (which was subject matter of challenge in Pappu''s case (supra) has become redundant on account of its withdrawal and revival of the old scheme of distribution as envisaged in Government Order dated 3.7.1990 there was no need to answer the questions. The larger Bench had the occasion to sift the various legal points which have been raised by Sri Ramendra Asthana in the present writ Petitioners, but since the larger Bench declined to answer the questions referred to it as the reference was found to have become redundant the judicial discipline demands that this Court sitting singly has to take into consideration the scheme of distribution of essential commodities as adumbrated by the revived Government Order dated 3.7.1990 and to adhere to the decisions in which said Government order came to be tested. The law laid down in the Full Bench decision in U.P. State Sasta Galla Vikreta Parishad (supra) and Shiv Mohan bal (supra) hold good as regards the scheme propounded under the Government Order dated 3.7.1990. The agreements executed under the said scheme shall be treated to be nonstatutory and the law laid down in Pappu''s case (supra) cannot be taken into consideration as it proceeded on the premises of the new scheme as contemplated under the Government Order dated 10.8.1999 which came into being on account f insertion of Article 243-G of the Constitution of India and substitution of Section 15 of the U.P. Panchayat Raj Act

The learned single Judge in the aforesaid judgment has summed up his conclusion in paragraphs 23, 24 and 25, which are as under:

To, sum up, it may be printed out that what has been canvassed, discussed and decided by a Division Bench of this Court in Pappu''s case (supra) in not applicable in the present Circumstances as in that case the Government order dated 10.8.1999 was the subject matter of challenge which came to be issued in the wage of insertion of new Article 243-G of the Constitution of India and substitution of Section 15 of the U.P. Panchyant Raj Act. After the withdrawal of the said Government order and reverting to the position as obtained at the time when the Government order dated 3.7.1990 was issued the decision in Pappu''s case (supra) has lost its relevance and the cases on which reliance cannot be ignored are Gopal Das Sahu (supra) and Shiv Mohan Lal (supra) in which agreements executed pursuant to the Government order dated 3.7.1990 were held to be non statutory contracts. After the decision of the large Bench to which the conflict was referred for resolution, the legal position which emerges is that the whole controversy is to be decided with reference to the Government order dated 3.7.1990 validity of which, as a matter of fact, already stands concluded by the decision aforesaid. Of necessity, therefore, the agreements which are in force pursuant to the Government Order dated 3.7.1990, are to be treated as nonstatutory agreements. The law, as said above is well settled that in case on non statutory agreement, if there is a breach of any term or condition, remedy of the dealer/license holder is approach the Civil Court for the redressal of his grievances. For the remedial measures, the writ jurisdiction under Article 226 of the Constitution of India is not available. All the writ petitions, therefore, turn out to be devoid of any merits and substance.

Before parting, it maybe pointed out that recently, the State Government has issued at least three Government orders on 4th January 2001 is with regard to the issue of license for the sale of high speed diesel oil by retail/petty diesel oil dealers. The license is to be granted by a committee headed by the District Magistrate. The conditions of license have further been circulated by Government order No. 557/29.7.2001-D (15)/2000 dated 3.2.2001, Similarly separate orders have been issued by the State Government with regard to the enforcement of reservation policy in the public distribution system both for rural and urban areas. The policy governing the urban areas is contained in Government order No. 21/29 Kha-6-2001-53 (samanya)/99 dated 4.1.2001 and that of rural area iS NO. VIP 169/29 Kha-6-2000-53 (Samanya)/99 of date. These two Government orders are relevant for the purposes of the appointment the dealers/license holders for distribution of the essential commodities through fair price shops. In both the cases, i.e. urban and rural, reservation in respect of scheduled Caste, Scheduled Tribes and other Backward Classes has been provided besides horizontal reservation in respect of women, ex-serviceman, members of the family of service-men who laid their lives in war or were injured, wife or widow of the freedom fighters and physically handicapped persons. In case of rural areas a fair price ration shops is to be opened or every 4000 run its and the selection of such shops is to be done by a resolution to be adopted by the Gaon Sabha in its open meeting. In case of urban areas, a ration shop is to be provided for every 3000 units by a committee headed by the District Magistrate as its Chairman and District Supply Officer as its convenor/Sachiv. In both the Government orders, necessary qualiftcations and eligibility formula have been provided. A note of caution is required to be sounded. The new scheme, which is prevalent for distributed of essential commendations in the State is contained in the Government Order dated 3.7.1990 was amended from time to time by subsequent orders, particularly the orders dated 4.1.2001. The new ration shops dealers are to be appointed after due advertisement and as per the requisites and eligibility criteria provided in the Government orders dated 4.1.2001 referred to above. However, there are yawning gaps in the existing scheme of distribution of essential commodities adopted by the State Government in truncated form, as the position existing prior to the Seventy Third Constitutional amendment which came into force on 24.4.1993 has been revived. It does not appear fulfill the aspirations, which culminated in the Seventy Third Amendment of the Constitution of India. The State Government has to give a fresh look to the matter. It has to consider whether the prevalent scheme is in keeping with the parameters prescribed in the newly inserted provision of Article 243-G of the Constitution of India and the substituted new Section 15 of the U.P. Panchayat Raj Act. If the existing scheme does not fulfill the mandate of the Seventy Third Amendment in the Constitution and the statutory provision of the Section 15 of the U.P. Panchayat Raj Act, it is like to invite adverse criticism and may be struck down by the appropriate forum. Taking note of this situation, the State Government would be well to remove the anomaly before it is too late. This Court sitting singly has reframed to delve into the realm of this aspect of the matter.

Learned single Judge was of the opinion that in view of the law, referred to above, in this judgment as also in the preceding paragraphs that the writ petition can simply be held to be not maintainable under Article 226 of the Constitution of India.

Shri Arvind Srivastava, learned Counsel appearing on behalf of one Respondent, who is defending the orders passed by the authorities also relied upon a decision, referred to above, and submitted that in view of the decision reported in Premji Bhai Parmar and Others Vs. Delhi Development Authority and Others, .. The case of the Respondents cannot be said to be either arbitrary or discriminatory so as to attract the provision of Article 14 of the Constitution of India. According to the learned Counsel, similar view, referred to above was taken in the cases reported in Kerala State Electricity Board and Another Vs. Kurien E. Kalathil and Others, .

In view of the discussion, referred to above, I am in full agreement with the view taken by learned single Judge of this Court, referred to above, in the case of Tareef Singh ana Ors. v. Commissioner, Agra Division and Ors. 2001 All. C.J. 1060 and I am of the opinion that against the action complained of, the present writ, petitions are not maintainable before this Court under Article 226 of the Constitution of India, as the contract of the type as was in the present case is purely non-statutory arising out of the Government orders and the remedy open to the person aggrieved by the action of the authorities is under the Government Order by filing an appeal. The appeal filed on behalf of the fair price holders/dealers/having been allowed/dismissed, the remedy open to the writ Petitioners/dealers is not a writ petition under Article 226 of the Constitution of India, but ordinary civil remedy. So far as the second category of the cases wherein the dealership was cancelled/suspended on the complaint made by the complainants and on appeal the Appellate Authority, according to the relevant Government Order, has restored the dealership without impleading these complainants, as the authority was affording an opportunity to the complainants, as the authority was affording an opportunity to the complainants, is concerned. In view of the Government Order, referred to above, since appeal lies only against the cancellation order, it was not necessary to heard the complainants, as the relevant Government Orders do not prescribe that complainants should also be heard, thus the authorities have not committed any error in not hearing the complainants.

To sum up the discussion, I am of the view that present writ petitions have no force and are accordingly dismissed. The interim order, if any, stand vacated. However, on the facts and circumstances of the case, there will be no order as to costs.